Customs Act 1901
View history note
Hide history noteDiv 3 heading substituted by No 75 of 2008, s 3 and Sch 3, item 3, effective 9 August 2008.
(Repealed by No 54 of 2003)
S 164 repealed by No 54 of 2003. S 164 formerly read:
REBATE OF DUTY IN RESPECT OF DIESEL FUEL USED FOR CERTAIN PURPOSES
164(1AA) [Scope]This section makes provision for a rebate to be payable in respect of diesel fuel purchased for certain usages. In particular (but without limiting the effect of the provisions), it sets out:
(a) the particular usages of diesel fuel that would entitle a person to apply for rebate (subsection (1)); and
(b) matters relating to the making of an application for the rebate (subsections (1A) to (1D), (3) and (4)); and
(c) the assessment of rebate entitlement (subsections (1E) and (4B)); and
(d) matters relating to the gathering of information for risk assessment purposes (subsections (1F) and (1G)); and
(e) other tests of eligibility for the rebates (subsections (2) and (4A)); and
(f) rules about calculation of the rate of rebates (subsections (5), (5A), (5AA) and (5AB)); and
(g) the application of provisions of the Acts Interpretation Act 1901 in relation to a notice under subsection (5A) declaring a rate of rebate (subsection (5B)); and
(h) a special appropriation clause for the purposes of this section (subsection (6)); and
(i) definitions of important terms used in this section (subsections (7) to (9)).HistoryS 164(1AA) inserted by No 97 of 1997, Sch 1, item 4 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 4 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998.
164(1AB) [Rebate not payable]Despite the other provisions of this section, rebate is not payable:
(a) for a purchase of diesel fuel on or after 1 July 2003; or
(b) as a result of an application received more than 5 months after 1 July 2003.HistoryS 164(1AB) amended by No 165 of 2001, Sch 1, Pt 1, effective 1 October 2001; inserted by No 87 of 1999, s 3, Sch 1, item 2, effective 1 July 2000.
164(1) [Rebate payable]A rebate is, subject to subsections (2) and (4A) and to such conditions and restrictions as are prescribed (being conditions and restrictions that relate to goods generally, to goods included in a class of goods that includes diesel fuel or to diesel fuel only), payable to a person who purchases diesel fuel for use by the person -
(a) in mining operations (otherwise than for the purpose of propelling any vehicle on a public road);
(aa) in primary production (otherwise than for the purpose of propelling a road vehicle on a public road);
(ab) in rail transport (otherwise than for the purpose of propelling a road vehicle on a public road) in the course of carrying on an enterprise;
(ac) in marine transport (otherwise than for the purpose of propelling a road vehicle on a public road) in the course of carrying on an enterprise;
(ad) at particular premises to generate electricity for use in the course of carrying on, at those premises, an enterprise that:
(i) has, as its principal purpose, the retail sale of goods or services or the provision of hospitality; and
(ii) does not have, at those premises, ready access to a commercial supply of electricity;
(b) at residential premises to generate electricity for use in -
(i) providing food and drink for;
(ii) providing lighting, heating, air-conditioning, hot water or similar amenities for; orresidents of the premises;
(iii) meeting other domestic requirements of,
(c) at a hospital or nursing home or at any other institution providing medical or nursing care; or
(d) at a home for aged persons.HistoryS 164(1) amended by No 46 of 2002, s 3, Sch 1, item 1 and 5, by inserting para (ad), applicable only in relation to diesel fuel purchased on or after 1 July 2002; No 25 of 2001, s 3, Sch 3, item 17, effective 4 May 2001; No 177 of 1999, s 3, Sch 6, item 1, by substituting ``transport'' for ``use'' in para (ac), effective 1 July 2000; No 87 of 1999, s 3, Sch 1, item 3, by inserting para (ab) and (ac), effective 1 July 2000; No 97 of 1997, Sch 1, item 5 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 5 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998; No 97 of 1997, s 3, Sch 1, item 6, by substituting ``any'' for ``a road'' in para (a), applicable only in relation to diesel fuel: (a) that is purchased before the day on which item 6 commenced and in respect of which an application for diesel fuel rebate is not received under s 164 before, on, or within 3 months after, that day; or (b) that is purchased on or after that day, effective 1 August 1997; No 87 of 1995, s 3, Sch 1 (as amended by No 21 of 1996, s 3, Sch 1, item 8), effective 1 July 1995.
164(1A) [Requirements of application for rebate]An application for rebate to be paid in respect of diesel fuel under subsection (1) must:
(a) be in accordance with an approved form; and
(b) include such information as is required by the form; and
(c) be signed in the manner indicated in the form; and
(d) be given to a taxation officer doing duty in relation to diesel fuel rebate; and
(e) if regulations made under subsection (1) provide that a rebate is not payable to an applicant under this section unless, when the application is made, the applicant gives a taxation officer doing duty in relation to diesel fuel rebate prescribed records containing prescribed information - be accompanied by such records.HistoryS 164(1A) amended by No 25 of 2001, s 3, Sch 3, item 17-18, effective 4 May 2001; substituted by No 97 of 1997, Sch 1, item 7 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 7 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998.
164(1B) [Waiver of requirement]The Commissioner may waive the requirement under paragraph (1A)(e) if the Commissioner is satisfied that the applicant is unable to give the records because of circumstances beyond the applicant's control.
HistoryS 164(1B) amended by No 25 of 2001, s 3, Sch 3, item 19, effective 4 May 2001; inserted by No 97 of 1997, Sch 1, item 7 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 7 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998.
164(1C) [Application after payment of duty]The application must not be made before duty is paid on the diesel fuel concerned.
HistoryS 164(1C) inserted by No 97 of 1997, Sch 1, item 7 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 7 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998.
164(1D) [Additional requirements for approved form]In addition to other matters that may be required to be included in the approved form, the applicant must, in the approved form:
(a) include an assessment of the applicant's entitlement to rebate that is being applied for (including any particulars or estimates concerning the amount of diesel fuel and the use or intended use of the fuel on which the assessment is based); and
(b) certify that the information contained in the application is correct; and
(c) state that the applicant is aware of the applicant's obligation in relation to the keeping of diesel fuel records as required under section 240A in relation to diesel fuel covered by the application and any other diesel fuel that has been, or is being, stored with that fuel; and
(d) state that the applicant is aware of the applicant's obligations in relation to the exercise of the audit powers by an authorised taxation officer conducting an audit under section 164AC.HistoryS 164(1D) amended by No 25 of 2001, s 3, Sch 3, item 20, effective 4 May 2001; inserted by No 97 of 1997, Sch 1, item 7 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 7 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998.
164(1E) [Commissioner may adopt applicant's assessment]Subject to this section, the Commissioner may, for the purposes of subsection (4B) and having regard to the outcome of any audit that relates, in whole or in part, to a particular application, adopt the whole or any part of the applicant's assessment contained in the application as the Commissioner's assessment of the applicant's entitlement to rebate in respect of that application.
HistoryS 164(1E) amended by No 25 of 2001, s 3, Sch 3, item 21-22, effective 4 May 2001; inserted by No 97 of 1997, Sch 1, item 7 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 7 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998.
164(1F) [Provision of information to Commissioner]A person who has applied for, or who has been paid, an amount of diesel fuel rebate, must, if the Commissioner, by notice in writing, requires the person to do so, give the Commissioner information, in an approved form, within the time specified in the notice, concerning:
(a) the business or operations of the person in respect of which the person has made, or ordinarily makes, application for rebate; and
(b) any business circumstances or seasonal factors that might affect the volume or incidence of applications by the person for rebate.HistoryS 164(1F) amended by No 25 of 2001 s 3, Sch 3, item 23, effective 4 May 2001; inserted by No 97 of 1997, Sch 1 item 7 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 7 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998.
164(1G) [Failure to provide information]If the Commissioner is satisfied that a person who is required to provide information under subsection (1F) fails to comply with that requirement, the Commissioner may advise the person that the Commissioner is so satisfied and, if he or she does so:
(a) the person ceases to have any entitlement to have any existing diesel fuel rebate application dealt with, or further dealt with, or any new diesel fuel rebate application dealt with, until the person so complies; but
(b) any rebate that has been paid in respect of a past diesel fuel rebate application is unaffected by the refusal or failure.HistoryS 164(1G) amended by No 25 of 2001, s 3, Sch 3, item 24], effective 4 May 2001; inserted by No 97 of 1997, Sch 1, item 7 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 7 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998.
164(2) [Use of fuel other than as specified]A person is not entitled to be paid diesel fuel rebate, or to retain diesel fuel rebate paid to the person, in respect of diesel fuel purchased by the person for use by the person in a manner referred to in subsection (1) that is specified in the application for that rebate if, in fact, the person:
(a) uses the fuel otherwise that in that manner; or
(b) sells or otherwise disposes of the fuel; or
(c) loses the fuel (whether because of accident, theft or any other reason).Note:
If rebate has been paid on diesel fuel that is subsequently used in a manner other than the manner indicated, or sold or otherwise disposed of, or lost, the rebate on the fuel is repayable. (See sections 164AA and 164AD).
S 164(2) substituted by No 97 of 1997, Sch 1, item 8 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 8 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998; amended by No 85 of 1995, s 11, Sch 9, effective 1 July 1995; amended by No 5 of 1990.
164(3) [Commissioner may refuse application for rebate]
Subject to subsection (4), the Commissioner may refuse to consider an application for rebate under this section if -
(a) the application does not relate to diesel fuel purchased for use in a manner referred to in paragraph (1)(b); and
(b) the quantity of diesel fuel in respect of which the application is made is less than 2,000 litres.
S 164(3) amended by No 25 of 2001, s 3, Sch 3, item 25, effective 4 May 2001.
164(4) [Quantity less than 2,000 litres]
The Commissioner shall not refuse to consider an application made by a person for rebate under this section only because the quantity of diesel fuel in respect of which the application is made is less than 2,000 litres if the application is the first application by the person for rebate under this section.
S 164(4) amended by No 25 of 2001, s 3, Sch 3, item 26, effective 4 May 2001.
164(4AA)
(Repealed by No 97 of 1997)
S 164(4AA) repealed by No 97 of 1997, Sch 1, item 9 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 9 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998.
164(4AB)
(Repealed by No 97 of 1997)
S 164(4AB) repealed by No 97 of 1997, Sch 1, item 9 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 9 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998; inserted by No 113 of 1993, s 5(a), effective 24 June 1994.
164(4A) [Application on or after 1 July 1994]
Rebate on a diesel fuel application received on or after 1 July 1994 is payable only in respect of diesel fuel purchased within 3 years before that application is so received, except where the applicant made an application, before the commencement of item 7 of Schedule 1 to the Customs and Excise Legislation Amendment Act (No. 1) 1997 , on particular grounds indicated in a notice of intention to make such an application that was given to Customs by the applicant before 1 July 1994.
S 164(4A) substituted by No 97 of 1997, Sch 1, item 9 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 9 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998; amended by No 113 of 1993, s 5(b), effective 24 June 1994; No 34 of 1992, s 34, effective 17 June 1992.
164(4B) [Written assessment of rebate]
If a person who has applied for diesel fuel rebate is to be paid rebate in respect of some or all of the diesel fuel to which the application relates, the Commissioner must, by written assessment, inform the person in writing of the amount of rebate (if any) payable to the person under the application.
Note:
The Commissioner's assessment may be subject to amendment under section 164AD.
S 164(4B) and Note amended by No 25 of 2001, s 3, Sch 3, item 27-28, effective 4 May 2001; s 164(4B) substituted by No 97 of 1997, Sch 1, item 9 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 9 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998; amended by No 34 of 1992.
164(4C) [Diesel fuel for use in rail or marine transport and retail or hospitality purposes]
The rebate payable under subsection (1) to a person in respect of diesel fuel purchased by the person for use in a manner referred to in paragraph (1)(ab) or (ac) (rail or marine transport) or in a manner referred to in paragraph (1)(ad) (generation of electricity for retail or hospitality purposes) is payable at the rate that the rebate would be payable if the use of the diesel fuel had been in primary production.
S 164(4C) amended by No 46 of 2002, s 3, Sch 1, item 2 and 5, applicable only in relation to diesel fuel purchased on or after 1 July 2002; inserted by No 177 of 1999, s 3, Sch 6, item 1, effective 1 July 2000.
164(4D)
(Repealed by No 97 of 1997)
S 164(4D) repealed by No 97 of 1997, Sch 1, item 9 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 9 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998; inserted by No 113 of 1993, s 5(c), effective 1 January 1994.
164(5) [Rate payable]
Subject to subsections (5AA) and (5AC), the rebate payable under subsection (1) to a person in respect of any diesel fuel purchased by the person for use in a manner referred to in a paragraph of that subsection is payable at the rate of -
(a) in the case of paragraph (1)(a) - $0.07619 per litre;
(b) in the case of paragraph (1)(aa) - $0.10007 per litre;
(c) in the case of paragraph (1)(b) - $0.07619 per litre;
(d) in the case of paragraph (1)(c) - $0.07619 per litre;
(e) in the case of paragraph (1)(d) - $0.07619 per litre.
S 164(5) amended by No 87 of 1999, s 3, Sch 1, item 4, effective 1 July 2000.
164(5A) [Rate higher than rate in subsec. (5)]
The Minister may, by notice in writing published in the Gazette , declare that the rate of rebate payable under subsection (1) to a person in respect of any diesel fuel for use in a manner referred to in a paragraph of that subsection and specified in the notice is, on and after a day specified in the notice, a rate specified in the notice, being a rate higher than the rate specified in subsection (5) in relation to that paragraph, and, subject to subsection (5AAC), where the Minister makes such a declaration, the declaration has effect accordingly.
S 164(5A) amended by No 91 of 2000, s 3, Sch 4B, item 1, effective 1 July 2000.
164(5AAA)
(Repealed by No 181 of 1999)
164(5AAB)
(Repealed by No 181 of 1999)
164(5AAC) [Rate lower than rate in subsec. (5) or (5A)]
The Minister may, by notice published in the Gazette , declare that the rate of rebate payable under subsection (1) to a person in respect of a specified type of diesel fuel that:
(a) is like fuel of a kind prescribed for the purposes of the definition of diesel fuel in subsection 4(1); and
(b) is for use in a manner referred to in a paragraph of subsection (1) of this section and specified in the notice;
is, on and after a day specified in the notice, a rate specified in the notice, being a rate lower than the rate specified in subsection (5) or under subsection (5A) (as the case requires) in relation to that paragraph, and, where the Minister makes such a declaration, the declaration has effect accordingly.
S 164(5AAC) inserted by No 91 of 2000, s 3, Sch 4B, item 2, effective 1 July 2000.
164(5AAD) [Diesel fuel for more than one purpose]
If a particular type of diesel fuel is used for more than one purpose, it may be treated for the purposes of subsection (5AAC) as more than one type of diesel fuel, each type relating to one or more purposes for which the fuel is used.
S 164(5AAD) inserted by No 91 of 2000, s 3, Sch 4B, item 2, effective 1 July 2000.
164(5AA) [Rebate equal to average of rates of rebate]
Subject to subsection (5ABA), the rebate payable to a person in respect of diesel fuel purchased by the person for use in a manner referred to in a paragraph of subsection (1) is payable at a rate equal to the average of the rates of rebate in relation to that paragraph in force on the last day of each of the 6 months immediately before the month in which the application for the rebate was received by the Commissioner, being:
(a) in relation to months ending before the commencement of this subsection - the rates under declarations made under subsection 164(5A) of this Act as in force immediately before the commencement of this subsection; or
(b) in relation to other months - the rates in force under declarations made under subsection (5A) or (5AAC).
S 164(5AA) amended by No 25 of 2001, s 3, Sch 3, item 29, effective 4 May 2001; No 91 of 2000, s 3, Sch 4B, item 3-4, effective 1 July 2000.
164(5AB) [Average of rates more than 5 decimal places]
Where an average of rates referred to in subsection (5AA) has more than 5 decimal places, the rate equal to that average shall, for the purposes of that subsection, be taken to be:
(a) if the average calculated to 6 decimal places would end in a number less than or equal to 4 - a rate equal to the average calculated to decimal places; or
(b) if the average calculated to 6 decimal places would end in a number greater than 4 - a rate equal to the average calculated to 5 decimal places increased by 0.00001.
164(5ABA) [Application of subsec. (5AA) to rebate]
Subsection (5AA) does not apply to the rebate payable in respect of diesel fuel if:
(a) the rate of rebate payable in respect of the diesel fuel is a rate specified in a notice under subsection (5AAC); and
(b) one or more of the rates of rebate that would be averaged under subsection (5AA) in respect of the fuel if that subsection applied would not be a rate specified in such a notice.
S 164(5ABA) inserted by No 91 of 2000, s 3, Sch 4B, item 5, effective 1 July 2000.
164(5AC) [Determination of rate of rebate]
The rate of rebate payable under subsection (1) to a person in respect of any diesel fuel purchased by the person for use in a manner referred to in more than one paragraph of that subsection is:
(a) if the rates of rebate in relation to each of those paragraphs are the same - the rate of rebate in relation to any of those paragraphs; or
(b) if the rates of rebate in relation to each of those paragraphs are not the same - the highest rate of rebate in relation to any of those paragraphs.
The reference in subsection (5AA) to a paragraph of subsection (1) is taken to be a reference to any one of those paragraphs to which that rate of rebate relates.
S 164(5AC) amended by No 177 of 1999, s 3, Sch 6, item 3, effective 1 July 2000; inserted by No 87 of 1999, s 3, Sch 1, item 7, effective 1 July 2000.
164(5B) [Notices under subsec (5A)]
The provisions of sections 48 (other than paragraphs (1)(a) and (b) and subsection (2)), 48A, 48B, 49, 49A and 50 of the Acts Interpretation Act 1901 apply to notices under subsection (5A) as if in those provisions references to regulations were references to notices, references to a regulation were references to a notice and references to repeal were a reference to revocation.
164(6) [Rebates payable out of Consolidated Revenue Fund]
Rebates payable under subsection (1) are payable out of the Consolidated Revenue Fund, which is appropriated accordingly.
164(7) [Definitions]
In this section -
"agriculture"
means:
(a) the cultivation of the soil; or
(b) the cultivation or gathering in of crops; or
(c) the rearing of live-stock; or
(d) viticulture, horticulture, pasturage or apiculture;
and includes:
(e) the shearing or cutting of hair or fleece of live-stock, or the milking of live-stock, carried out on an agricultural property; or
(f) frost abatement carried out on an agricultural property; or
(g) the transporting of live-stock to an agricultural property:
(i) for the purpose of rearing; or
(ii) for the purpose of agistment; or
(h) the return journey from a place referred to in paragraph (g) of the vehicles or equipment used in transporting the live-stock, if that journey is for the purpose of later carrying out the transportation referred to in paragraph (g) or for the backloading of raw materials or consumables for use in a core agricultural activity; or
(i) the mustering of live-stock undertaken:
(i) by a person who carries on a core agricultural activity; or
on the agricultural property where the core agricultural activity is carried on; or
(ii) by a person contracted by that person to carry out the mustering;
(j) hay baling on the agricultural property where the hay was cultivated; or
(k) the planting or tending of trees on an agricultural property otherwise than for the purpose of felling; or
(l) any activity undertaken for the purpose of soil or water conservation:
(i) by a person who carries on a core agricultural activity; or
on the agricultural property where the core agricultural activity is carried on; or
(ii) by a person contracted by that person to carry out the first-mentioned activity;
(la) the carrying out of firefighting activities:
(i) by a person who carries on a core agricultural activity; or
on the agricultural property where the core agricultural activity is carried on or at a place adjacent to that place; or
(ii) by a person contracted by that person to carry out the first-mentioned activity;
(m) the construction or maintenance of fences undertaken:
(i) by a person who carries on a core agricultural activity; or
on the agricultural property where the core agricultural activity is carried on; or
(ii) by a person contracted by that person to carry out the construction or maintenance;
(n) the construction or maintenance of firebreaks undertaken:
(i) by a person who carries on a core agricultural activity; or
on the agricultural property where the core agricultural activity is carried on or at a place adjacent to that place; or
(ii) by a person contracted by that person to carry out the construction or maintenance;
(o) the service, maintenance or repair of vehicles or equipment for use in an agricultural activity if the service, maintenance or repair:
(i) is carried out on an agricultural property where a core agricultural activity is carried on; and
(ii) is carried out by the person who carries on the first-mentioned agricultural activity or by a person contracted by that person to carry out the service, maintenance or repair; or
(p) the construction or maintenance of sheds, pens, silos or silage pits for use in an agricultural activity if the construction or maintenance:
(i) is carried out on an agricultural property where a core agricultural activity is carried on; and
(ii) is carried out by the person who carries on the first-mentioned agricultural activity or by a person contracted by that person to carry out the construction or maintenance; or
(q) the construction or maintenance of dams, water tanks, water troughs, water channels, irrigation systems or drainage systems including, without limiting the generality of the foregoing, water pipes and water piping for use in a core agricultural activity if the construction or maintenance:
(i) is carried out on the agricultural property where the core agricultural activity is carried on; and
(ii) is carried out by the person who carries on the core agricultural activity or by a person contracted by that person to carry out the construction or maintenance; or
(r) the carrying out of earthworks for use in a core agricultural activity if the earthworks:
(i) are carried out on the agricultural property where the core agricultural activity is carried on; and
(ii) are carried out by the person who carries on the core agricultural activity or by a person contracted by that person to carry out the earthworks; or
(s) searching for ground water solely for use in an agricultural activity, or the construction or maintenance of facilities for the extraction of such water, solely for that use, if the searching, construction or maintenance:
(i) is carried out on an agricultural property where a core agricultural activity is carried on, or at a place adjacent to that property; and
(ii) is carried out by the person who carries on the first-mentioned agricultural activity or by a person contracted by that person to carry out the searching, construction or maintenance; or
(t) any activity undertaken for the purposes of soil or water conservation:
(i) by a person who carries on a core agricultural activity within an approved catchment area; or
within the approved catchment area; or
(ii) by a person contracted by that person to carry out the first-mentioned activity;
(u) the pumping of water solely for use in an agricultural activity if the pumping:
(i) is carried out on an agricultural property where a core agricultural activity is carried on, or at a place adjacent to that property; and
(ii) is carried out by the person who carries on the first-mentioned agricultural activity or by a person contracted by that person to carry out the pumping, other than a person so contracted that is a Commonwealth authority or a State or Territory authority; or
(v) the supply of water solely for use in an agricultural activity if:
(i) the supply is to an agricultural property where a core agricultural activity is carried on; and
(ii) the water comes from that property or a place adjacent to that property; and
(iii) the supply is carried out by the person who carries on the first-mentioned agricultural activity or by a person contracted by that person to carry out the supply, other than a person so contracted that is a Commonwealth authority or a State or Territory authority; or
(w) the storage of produce of a core agricultural activity on an agricultural property where a core agricultural activity is carried on; or
(x) the packing, or the prevention of deterioration, of the produce of a core agricultural activity if:
(i) the packing, or the prevention of deterioration, of the produce is carried out on an agricultural property where a core agricultural activity is carried on; and
(ii) there is no physical change to the produce; and
(iii) the packing, or the prevention of deterioration, of the produce does not constitute a processing of the produce; or
(y) weed, pest or disease control undertaken:
(i) by a person who carries on a core agricultural activity; or
on the agricultural property where the core agricultural activity is carried on; or
(ii) by a person contracted by that person to carry out the weed, pest or disease control;
(z) the removal of waste products of an agricultural activity from the agricultural property where the activity is carried on; or
(za) the disposal of waste products of an agricultural activity on the agricultural property where the activity is carried on; or
(zb) hunting or trapping that is carried on for the purposes of a business, including the storage of any carcasses or skins obtained from the hunting or trapping; or
(zba) the use of diesel fuel at residential premises in:
(i) providing food and drink for; or
(ii) providing lighting, heating, air-conditioning, hot water or similar amenities for; or
(iii) meeting other domestic requirements of;
residents of the premises if:
(iv) the use is by a person who carries on a core agricultural activity; and
(v) the residential premises are situated on the agricultural property where that activity is carried on;
but does not include:
(zc) fishing operations or forestry; or
(zd) an activity referred to in any one of paragraphs (a) to (za) or paragraph (zba) unless the activity is carried out for the purposes of, or for purposes that will directly benefit, a business undertaken to obtain produce for sale.
Note: The agricultural activities referred to in paragraph (i), (l), (la), (m), (n), (o), (p), (q), (r), (s), (t), (u), (v) or (y) are given an expanded meaning by subsection (8).
Definition of ``agriculture'' amended by No 87 of 1995, s 3, Sch 1 (as amended by No 21 of 1996, s 3, Sch 1), by inserting para (la) and (zba), effective 1 July 1995; substituted by No 87 of 1995, s 3, Sch 1 (as amended by No 21 of 1996, s 3, Sch 1), effective 1 August 1986. For application and saving provisions, see note at the end of s 164.
"agricultural activity"
means an activity referred to in any one of paragraphs (a) to (za) of the definition of
``agriculture''
if that activity is carried out for the purposes of, or for purposes that will directly benefit, a business undertaken to obtain produce for sale;
Definition of ``agricultural activity'' inserted by No 87 of 1995, s 3, Sch 1, effective 1 August 1986. For application and saving provisions, see note at the end of s 164.
"agricultural use limestone"
means limestone for use in the de-acidification of soil in any agricultural activity other than the activity referred to in paragraph (t) of the definition of
``agriculture''
.
Definition of ``agricultural use limestone'' inserted by No 87 of 1995, s 3, Sch 1 (as amended by No 21 of 1996, s 3, Sch 1), effective 1 July 1996.
"approved catchment area"
means an area:
(a) in respect of which a soil or water conservation plan has been adopted by the persons who carry on core agricultural activities within that area; or
(b) in respect of which a soil or water conservation agreement has been made between the persons who carry on core agricultural activities within that area.
Definition of ``approved catchment area'' inserted by No 87 of 1995, s 3, Sch 1 (as amended by No 21 of 1996, s 3, Sch 1), effective 1 August 1986.
carrying on an enterprise
has the same meaning as in the
Diesel and Alternative Fuels Grants Scheme Act 1999
;
Definition of ``carrying on an enterprise'' inserted by No 87 of 1999, s 3, Sch 1, item 8, effective 1 July 2000.
"core agricultural activity"
means an activity referred to in paragraph (a), (b), (c) or (d) of the definition of
``agriculture''
if that activity is carried out for the purposes of, or for purposes that will directly benefit, a business undertaken to obtain produce for sale;
Definition of ``core agricultural activity'' inserted by No 87 of 1995, s 3, Sch 1, effective 1 August 1986. For application and saving provisions, see note at the end of s 164.
"duty"
has the same meaning as in subsection 163(1);
"earthworks"
means:
(a) the forming or maintenance of levee banks or windbreaks; or
(b) contour banking; or
(c) land levelling or land grading;
Definition of ``earthworks'' inserted by No 87 of 1995, s 3, Sch 1, effective 1 August 1986. For application and saving provisions, see note at the end of s 164.
"fish"
means freshwater or salt-water fish, and includes turtles, dugong, crustacea, molluscs or any other living resources of the sea or of the sea-bed;
"fishing operations"
means:
(a) the taking, catching or capturing of fish;
(b) the farming of fish;
(c) the processing of fish on board vessels;
(d) pearling operations;
(e) the operation of a dedicated mother vessel in connection with the activities referred to in paragraphs (a), (b), (c) or (d); or
(f) the undertaking:
(i) of voyages to or from a port by a vessel for the purposes of refitting or repairing the vessel, or its equipment, for purposes that are integral to the performance of an activity referred to in paragraph (a), (b), (c), (d) or (e); or
(ii) trials in connection with such a refit or repair of a vessel or of its equipment;
but does not include any activity referred to in paragraph (a), (b), (c), (d), (e) or (f) that is conducted, in whole or in part:
(g) otherwise than for the purposes of a business; or
(h) for business purposes connected with recreation, sport or tourism;
"forestry"
means
-
(a) the planting or tending, in a forest or plantation, of trees intended for felling; or
(b) the thinning or felling, in a forest or plantation, of standing timber,
and includes -
(c) the transporting, milling or processing, in a forest or plantation, of timber felled in the forest or plantation;
(d) the milling of timber at a sawmill or chipmill that is not situated in the forest or plantation in which the timber was felled;
(e) where timber is milled at a sawmill or chipmill that is not situated in the forest or plantation in which the timber was felled - the transporting of the timber from the forest or plantation in which it was felled to the sawmill or chipmill; or
(f) the making and maintaining in a forest or plantation referred to in paragraph (a) or (b) of a road that is integral to the activities referred to in paragraph (a), (b) or (c);
"gross vehicle weight"
, in relation to a vehicle, means the road weight specified by the manufacturer of the vehicle as the maximum design weight capacity of the vehicle, or, in the absence of such a specification, the sum of the following:
(a) the weight of the vehicle;
(b) the weight of the maximum load for which the vehicle was designed (including the weight of the driver and a full tank of fuel).
Definition of ``gross vehicle weight'' inserted by No 97 of 1997, s 3, Sch 1, item 10, applicable only in relation to diesel fuel: (a) that is purchased before the day on which item 10 commenced and in respect of which an application for diesel fuel rebate is not received under s 164 before, on, or within 3 months after, that day; or (b) that is purchased on or after that day, effective 1 August 1997.
"horticulture"
includes
-
(a) the cultivation or gathering in of fruit, vegetables, herbs, edible fungi, nuts, flowers, trees, shrubs or plants;
(b) the propagation of trees, shrubs or plants; or
(c) the production of seeds, bulbs, corms, tubers or rhizomes;
"live-stock"
includes any animal reared for the production of food, fibres, skins, fur or feathers, or for its use in the farming of land;
"marine use"
(Omitted by No 177 of 1999)
marine transport
includes transport by vessels in or on fresh water, but does not include any transport relating to forestry.
Definition of ``marine transport'' inserted by No 177 of 1999, s 3, Sch 6, item 5, effective 1 July 2000.
"minerals"
means minerals in any form, whether solid, liquid or gaseous and whether organic or inorganic, except:
(a) sand, sandstone, soil, slate, clay (other than bentonite or kaolin), basalt, granite, gravel or water; or
(b) limestone (other than agricultural use limestone).
Definition of ``minerals'' substituted by No 87 of 1995, s 3, Sch 1, (as amended by No 21 of 1996, s 3, Sch 1), except that insofar as the definition refers to water the substitution is deemed to have commenced on 1 August 1986, effective 1 July 1995.
"mining operations"
means:
(a) exploration or prospecting for minerals, or the removal of overburden and other activities undertaken in the preparation of a site to enable mining for minerals to commence; or
(b) operations for the recovery of minerals, being:
(i) mining for those minerals including the recovery of salts by evaporation; or
(ii) the beneficiation of those minerals, or of ores bearing those minerals;Note: The meaning of paragraph (b) is affected by subsections (7A), (7B) and (7C).
and includes:
(c) if minerals, or ores bearing minerals, are beneficiated at a place other than the mining site as an integral part of operations for their recovery:
(i) the journey undertaken for the purpose of transporting the minerals or ores from the mining site to that place except to the extent (if any) that the journey involves transportation by sea; and
(ii) the return journey of a vehicle, a locomotive or other equipment from that place to the mining site or any part of that journey if it is undertaken for the purpose of repeating a journey referred to in subparagraph (i) or for the backloading of raw materials or consumables for use in a mining operation referred to in paragraph (a) or (b); or
(d) the undertaking:
(i) of voyages to or from an Australian port by a ship that is proposed to be, or that is, used wholly or primarily in carrying out northern mining activities for the purposes of refitting or repairing the ship or its equipment for, or as a result of, carrying out those activities; or
(ii) of trials in connection with such a refit or repair of the ship or its equipment; or
(e) the liquefying of natural gas; or
(f) if natural gas is liquefied at a place other than the mining site - the transporting of the natural gas from the mining site to that place; or
(g) (repealed by No 97 of 1997)
(h) the reactivation of carbon for use in the beneficiation of ores bearing gold if the reactivation occurs at the place where a recovery operation referred to in paragraph (b) is carried on; or
(i) coal stockpile management for the prevention of the spontaneous combustion of coal if the management is carried out:
(i) by a person who carries on a mining operation referred to in paragraph (a) or (b); or
at the place where the mining operation is carried on; or
(ii) by a person contracted by that person to carry out the management;
(j) the generation of electricity solely for, or the provision of electricity solely to, a mining town if:
(i) the existence of the town is necessary to enable a mining operation referred to in paragraph (a) or (b) to be undertaken; and
(ii) the generation or provision is carried out by the person who carries on the mining operation; or
(k) the rehabilitation before 1 July 1995 of a place at which a mining operation referred to in paragraph (a) or (b) has been carried on if the rehabilitation is carried out by:
(i) the person who carried on the mining operation at the place; or
(ii) a person contracted by that person to carry out the rehabilitation; or
(ka) the rehabilitation of a place affected by a mining operation referred to in paragraph (a) or (b) if the rehabilitation is carried out by:
(i) the person who carried on the mining operation; or
(ii) a person contracted by that person to carry out the rehabilitation; or
(l) searching for ground water solely for use in a mining operation referred to in paragraph (a) or (b), or the construction or maintenance of facilities for the extraction of such water, solely for that use, if the searching, construction or maintenance:
(i) occurs at the place where the mining operation is carried on; and
(ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the searching, construction or maintenance; or
(m) the pumping of water solely for use in a mining operation referred to in paragraph (a) or (b) if the pumping:
(i) occurs at the place where the mining operation is carried on or at a place adjacent to that place; and
(ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the pumping; or
(n) the supply of water solely for use in a mining operation referred to in paragraph (a) or (b) if:
(i) the supply is to the place where the mining operation is carried on; and
(ii) the water comes from that place or a place adjacent to that place; and
(iii) the supply is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the supply; or
(o) the construction or maintenance of private access roads for use in a mining operation referred to in paragraph (a) or (b) if the construction or maintenance:
(i) occurs at the place where the mining operation is carried on; and
(ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or
(p) the construction or maintenance of:
(i) tailings dams for use in a mining operation referred to in paragraph (a) or (b); or
if the construction or maintenance:
(ii) dams, or other works, to store or contain water that has been used in, or obtained in the course of conducting, a mining operation referred to in paragraph (a) or (b) and that contains contaminants that preclude its release into the environment;
(iii) occurs at the place where the mining operation is carried on or at a place adjacent to that place; and
(iv) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or
(pa) the construction or maintenance of dams for the storage of uncontaminated water for use in a mining operation referred to in paragraph (a) or (b) if the construction or maintenance:
(i) occurs at the place where the mining operation is carried on; and
(ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or
(q) the construction or maintenance of private airstrips, buildings, plant or equipment for use in a mining operation referred to in paragraph (a) or (b) if the construction or maintenance:
(i) occurs at the place where the mining operation is carried on; and
(ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or
(r) the construction or maintenance of power stations or power lines solely for use in a mining operation referred to in paragraph (a) or (b) if the construction or maintenance:
(i) occurs at the place where the mining operation is carried on; and
(ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or
(s) the removal of waste products of a mining operation referred to in paragraph (a) or (b) from the place where the mining operation is carried on; or
(t) the disposal of waste products of a mining operation referred to in paragraph (a) or (b) at the place where the mining operation is carried on; or
(u) the service, maintenance or repair of vehicles, plant or equipment for use in a mining operation referred to in paragraph (a) or (b) if the service, maintenance or repair:
(i) occurs at the place where the mining operation is carried on; and
(ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the service, maintenance or repair; or
(v) the service, maintenance or repair of vehicles or equipment solely for use in a mining operation referred to in paragraph (c) if the service, maintenance or repair is carried out by:
(i) the person who carries on the mining operation; or
(ii) a person contracted by that person to carry out the service, maintenance or repair; or
(va) the service, maintenance or repair of transport networks that are employed solely for use in a mining operation referred to in paragraph (c) to the extent that the service, maintenance or repair:
(i) is carried out on so much of the network as is located at the place where a mining operation referred to in paragraph (a) or (b) is carried out; and
(ii) is carried out by the person who carries on the mining operation referred to in paragraph (c) or by a person contracted by that person to carry out the service, maintenance or repair, or
(w) the use of diesel fuel at residential premises in:
(i) providing food and drink for; or
(ii) providing lighting, heating, air-conditioning, hot water or similar amenities for; or
residents of the premises if:
(iii) meeting other domestic requirements of;
(iv) the use is by a person who carries on a mining operation referred to in paragraph (a) or (b); and
(v) the residential premises are situated at the place where the mining operation is carried on, or at a place adjacent to that place;
but does not include:
(x) quarrying or dredging operations to the extent that the purpose of the operations is to obtain materials for use in building, road making, landscaping, construction or similar purposes; or
(y) the use of a vehicle (other than a fork-lift, front-end loader, tractor or other similar prescribed vehicle) not exceeding 3.5 tonnes gross vehicle weight, other than such a vehicle that is extensively modified for use underground while it is so used; or
(z) the transport, by any means, of people, equipment or goods to or from a place where a mining operation referred to in any of paragraphs (a) to (w) is, or is to be,
carried on, or to or from a place adjacent to that place, other than such transport to the extent that it constitutes the activity described in paragraph (c), (n) or (s).
Note: Examples of quarrying or dredging operations that are covered by paragraph (x) include operations for obtaining materials for use as concrete aggregate, road base materials, railway ballast, fill materials, building stone or monumental stone.
Definition of ``mining operations'' amended by No 8 of 1998, s 2(2), Sch 1, item 3, by substituting the note to para (b), effective 1 August 1997; No 97 of 1997, s 3, Sch 1, item 11-19, by substituting para (a), (b), (c) and (p); repealing para (g); amending para (h), (l) and (v); and inserting para (pa), (va), (x), (y) and (z), applicable only in relation to diesel fuel: (a) that is purchased before the day on which item 11-19 commenced and in respect of which an application for diesel fuel rebate is not received under s 164 before, on, or within 3 months after, that day; or (b) that is purchased on or after that day, effective 1 August 1997; No 87 of 1995, s 3, Sch 1 (as amended by No 21 of 1996, s 3, Sch 1), by inserting para (ka) and para (w), effective 1 July 1995; substituted by No 87 of 1995, s 3, Sch 1 (as amended by No 21 of 1996, s 3, Sch 1), effective 1 August 1986. For application and saving provisions, see note at the end of s 164; amended by No 209 of 1992, s 21, effective 18 August 1992 (as amended by No 8 of 1994, s 23, Sch 2, effective 18 August 1994).
"mining town"
means a town constructed by or on behalf of a person engaged in mining operations, in an area where immediately prior to its construction there was no town, principally to house employees of the person, but does not include a town administered by:
(a) a council that is constituted under local government legislation of a State or Territory; or
(b) an organisation taken to be a council under such legislation;
Definition of ``mining town'' inserted by No 87 of 1995, s 3, Sch 1 (as amended by No 21 of 1996, s 3, Sch 1), effective 1 August 1986. For application and saving provisions, see note at the end of s 164.
"northern mining activities"
means activities associated with or incidental to, the exploration for, or exploitation of, oil or natural gas in waters within the geographical boundaries of 100
°
east longitude to 140
°
east longitude and the equator to 30
°
south latitude;
Definition of ``northern mining activities'' inserted by No 209 of 1992, s 21, effective 18 August 1992.
"pearling operations"
means
-
(a) the taking of pearl shell; or
(b) the culture of pearls or pearl shell,
and includes the taking or capturing of trochus, beche-de-mer or green snails;
"primary production"
means
-
(a) agriculture;
(b) fishing operations; or
(c) forestry;
"processing"
, in relation to fish, includes
-
(a) the cutting up, dismembering, cleaning, sorting or packing of fish;
(b) the preserving or preparing of fish; or
(c) the producing of any substance or article from fish;
rail transport
includes light rail transport and transport by tram, but does not include any rail transport relating to forestry.
Definition of ``rail transport'' inserted by No 87 of 1999, s 3, Sch 1, item 10, effective 1 July 2000.
"residential premises"
means
-
(a) premises used as a house; or
(b) other premises at which at least one person resides,
but does not include -
(c) premises used in the business of a hotel, motel or boarding house or a similar business;
(d) premises used as a hospital or nursing home or as any other institution providing medical or nursing care;
(e) premises used as a home for aged persons; or
(f) premises used as a boarding school;
retail sale
, in relation to goods or services, does not include the retail sale of electricity.
Definition of ``retail sale'' inserted by No 46 of 2002, s 3, Sch 1, item 3 and 5, applicable only in relation to diesel fuel purchased on or after 1 July 2002.
"road vehicle"
means a vehicle of a kind ordinarily used on roads for the transport of persons or goods;
"State or Territory authority"
means:
(a) an instrumentality of a State or Territory; or
(b) an authority or body established for the purpose of a State or Territory by or under a law of the State or Territory;
Definition of ``State or Territory authority'' inserted by No 87 of 1995, s 3, Sch 1, effective 1 August 1986. For application and saving provisions, see note at the end of s 164.
"transport networks"
includes conveyor belts, pipelines and railway lines;
Definition of ``transport networks'' inserted by No 87 of 1995, s 3, Sch 1, effective 1 August 1986. For application and saving provisions, see note at the end of s 164.
"use"
, in relation to diesel fuel in relation to a person, does not include the sale or other disposal of the diesel fuel by the person to another person or the loss of the diesel fuel by the person.
Definition of ``use'' amended by No 97 of 1997, Sch 1, item 20 and 41, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of the Act on or after the day on which item 20 commenced (whether the fuel was purchased before or after that day), effective 1 January 1998.
164(7A) [When recovery of mineral ceases]
For the purposes of the definition of mining operations , operations for the recovery of a mineral cease:
(a) when the process of beneficiation ceases; or
(b) in the absence of a beneficiation process - when the mineral, or ores bearing the mineral:
(i) are first stockpiled or otherwise stored at the place at which the mining operation is carried on; or
(ii) if subparagraph (i) does not apply - are removed from the ore body or deposit.
S 164(7A) inserted by No 97 of 1997, s 3, Sch 1, item 21, applicable only in relation to diesel fuel: (a) that is purchased before the day on which item 21 commenced and in respect of which an application for diesel fuel rebate is not received under s 164 before, on, or within 3 months after, that day; or (b) that is purchased on or after that day, effective 1 August 1997,
164(7B) [When beneficiation of manganese ceases]
The beneficiation of ores bearing manganese minerals ceases when manganese-mineral concentrates are last deposited in a holding bin, or in a stockpile, at the place where the concentration is carried on, before transportation of those concentrates.
S 164(7B) inserted by No 97 of 1997, s 3, Sch 1, item 21, applicable only in relation to diesel fuel: (a) that is purchased before the day on which item 21 commenced and in respect of which an application for diesel fuel rebate is not received under s 164 before, on, or within 3 months after, that day; or (b) that is purchased on or after that day, effective 1 August 1997.
164(7C) [Matters to be regarded in beneficiation process]
In determining whether a particular process to which a mineral, or ores bearing a mineral, are subjected constitutes beneficiation of that mineral or those ores, regard is to be had to the nature of the technical process involved but no regard is to be had to any market considerations that might affect the decision to subject that mineral or those ores to that process.
S 164(7C) inserted by No 97 of 1997, s 3, Sch 1, item 21, applicable only in relation to diesel fuel: (a) that is purchased before the day on which item 21 commenced and in respect of which an application for diesel fuel rebate is not received under s 164 before, on, or within 3 months after, that day; or (b) that is purchased on or after that day, effective 1 August 1997.
164(8) [Agricultural activity carried out by subcontractor]
For the purposes of determining whether an activity is an agricultural activity, the activity referred to in paragraph (i), (l), (la), (m), (n), (o), (p), (q), (r), (s), (t), (u), (v) or (y) of the definition of ``agriculture'' includes such an activity when it is carried out by a subcontractor of a person contracted to carry out the activity.
S 164(8) amended by No 87 of 1995, s 3, Sch 1 (as amended by No 21 of 1996, s 3, Sch 1), by inserting the reference to para (1a), effective 1 July 1995; inserted by No 87 of 1995, s 3, Sch 1 (as amended by No 21 of 1996, s 3, Sch 1), effective 1 August 1986.
164(9) [Mining operations construed]
For the purposes of determining whether an operation is a mining operation:
(a) the operations referred to in paragraph (i), (k), (ka), (l), (m), (n), (o), (p), (pa) (q), (r), (u), (v) or (va) of the definition of mining operations include such operations when they are carried out by a subcontractor of a person contracted to carry out the operations; and
(b) the paragraphs occurring after paragraph (b) of the definition of mining operations are, subject to subsections (7A), (7B) and (7C) and paragraph (9)(a), to be construed in their own terms and not by reference to paragraph (a) or (b) of the definition.
S 164(9)(b) amended by No 8 of 1998, s 2(2), Sch 1, item 4, effective 1 August 1997; inserted by No 97 of 1997, s 3, Sch 1, item 22, applicable only in relation to diesel fuel: (a) that is purchased before the day on which item 22 commenced and in respect of which an application for diesel fuel rebate is not received under s 164 before, on, or within 3 months after, that day; or (b) that is purchased on or after that day, effective 1 August 1997.
164(10) [Beneficiation process provided by regulations]
The regulations may provide that, without otherwise affecting the ordinary meaning of beneficiation, a particular process, or a particular process in respect of a particular mineral or of ores bearing a particular mineral, is, for the purposes of this Act, a beneficiation process, or a beneficiation process in respect of that mineral or those ores, as the case requires.
S 164(10) inserted by No 97 of 1997, s 3, Sch 1, item 22, applicable only in relation to diesel fuel: (a) that is purchased before the day on which item 22 commenced and in respect of which an application for diesel fuel rebate is not received under s 164 before, on, or within 3 months after, that day; or (b) that is purchased on or after that day, effective 1 August 1997,
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